ILR application made under 3C

[andsyl]

I have been reading this forum for quite a while and thought it is worth joining to share my experience.

I have come to the UK with my spouse as a student on 15 December 2000 and we have been granted visa in this category until 30 September 2010. Since our qualifying date to apply for ILR was 15 December 2010, we had to apply for a renewal of the student visa to cover the 2 1/2 months shortages.

However, 28 days before the qualifying period (being under 3C) we made an application for ILR under the 10 years rules. We explicitly required the UKBA to vary the ground of our Tier 4 application to include the basis of long residence. Our covering letter clearly explained that the application was made under both Section 5 (3C) of the immigration Act 1971 and section 2.3.6 of Chapter 18 of immigration Directorates' Instructions (Long residence, 2009).

Under section 2.3.6, the applicant must pay an additional fee the application attracts a higher fee that the initial application. That is exactly what we did. We just paid the balance between the student visa fee and the ILR fee.

Unfortunately our student visa got refused because I failed to send one certificate mentioned in the CAS letter to the UKBA. The decision was made on 20/01/2011, well after we had completed 10 years residence. We had a full right of appeal. While awaiting decision on our ILR application, we submitted our appeal and at the tribunal the appeal was allowed on 15 February, meaning that technically the student visa will be renewed. When the UKBA refuse our Tier 4 visa they also returned our passports. On receipt, we sent them straight away to Liverpool to complete our ILR application as advised in the SET(O) form guidance under "Contacting us after you have applied".

Two days after our appeal hearing we received a letter from the UKBA, Croydon (after almost 13 weeks) returning our ILR application. The only reason for returning being that the application is invalid for the payment of incorrect fee. The letter says that we will have a full refund and that we can make a fresh application with the correct fee £900/applicant. However, the application did not include our passports (that were sent separately to Liverpool). May be it worth mentioning that the letter was signed by a member of the "Charging Support Team". Does this means that after nearly 13 weeks our application had not been passed to a caseworker?

I had a feeling that our cover letter hasn't been taken into account or there staff working at the Home office who do not know that an application can be varied. I wrote an another letter the same day, and this time I added the link to the relevant section on the UKBA website, showing the ways we computed the balance fees that we paid. I then argued that from my interpretation of the rules, our application was valid and I requested a review on the basis of the additional explanation provided.

I was expecting them to review the application before authorizing the reimbursement of our fee. But this morning I received 2 cheques from the UKBA for the fees paid by my spouse and me (We applied separately but in the same envelop).

Now I do not know what to do. Should we:

1- Wait for the UKBA's reaction about the review I have requested? or

2- Request a return of my passport to make a fresh application? How could this be done? I sent the passports and I presume they'd not be included in my application. Can a new application be made with the copy of life in the UK test? (the original has been sent with the previous application)

3- Make a fresh application, explaining that the passport is already held by the UKBA and providing the Royal Mail special Delivery reference number

I will very much appreciate any other suggestion.

To conclude I would like to mention that I have never use a Solicitor for my successive student visa renewal, the tribunal appeal process and hearing and the dealing with the current ILR application.

May be if I had come across this forum early, I would have done things differently. I will appreciate to hear from others to identified where I might have got it wrong.

My apologies for this long stories. I thought It could necessary to provide as much information as possible to reduce the amount of questions people may have to ask.

All the best to all those who are being or have been subject to what can be seen as mere human mental torture.

[geriatrix]

However, 28 days before the qualifying period (being under 3C) we made an application for ILR under the 10 years rules.

To which address did you send this application?


regards

[andsyl]

However, 28 days before the qualifying period (being under 3C) we made an application for ILR under the 10 years rules.

To which address did you send this application?


regards

TO:
UK Border Agency
SET(O)
Indefinite Leave to Remain
PO Box 591
Durham
DH1 9FS

Money as taken the same day and acknowledgment letter received after 5 days.

Regards

Andsyl

[joh118]

Your situation gives me a headache!!! I would personally see a qualified expert about this. It will be money well spent.

So after the UKBA returned your Passport after the student visa chaos, you sent your passport back WITHOUT an application form??? - that is basically asking the UKBA to lose your passport!

I would call them and ask for your passports to be returned ASAP. I would then pray and ask for some miracle to happen that somehow the UKBA manages to find your passports! If they are returned, I would reapply using SET(O).

The recent problems wouldn't have made any difference to your eligibility but due to the recent problems, a solicitor will be a good investment.

[geriatrix]

I agree with the response above that you must request for your passports back. Too precious to be sitting with UKBA, and with no immigration application under consideration!

What you should do depends on whether you want UKBA to admit their mistake and process your ILR application with you paying only the incremental fees (difference between the student fees and ILR fees), or are you okay with applying for ILR afresh and pay the total fees for it!

If the former, chase UKBA regarding your review letter, since UKBA appears to be at fault due to internal procedural inefficiencies. If you do not get a any / favourable response, you may wish to consult a competent immigration solicitor on how to proceed but this may cost extra and therefore negate / reduce any financial benefit of paying incremental fees to UKBA.

If the latter, now that your appeal has been allowed and your student leave will have to be issued by UKBA, you can always make a new ILR application any day ... after you have received your passports back.


regards

[andsyl]

Thank you for your advice.

I am ready to make a fresh application and paid the full fee. I returned the application just to remind the UKBA that they have incorrectly applied the rules.

I am thinking of giving the UKBA until Friday before starting to chase them, mainly to get our passports back.

This is because I am under the impression that if they decided to review my application, requiring the passport back could be considered as a withdrawal of the application. What is your view about this?

Since the the passports were sent to Liverpool, If I were to write to them, should the letter be sent to Liverpool or Croydon?

[geriatrix]

UKBA currently has no application from your end to assess / process, only a review request to reconsider a previous (ILR) refusal - which is a result of UKBA's internal procedural inefficiencies rather than your ineligibility for settlement.

So, asking for passports shouldn't change anything. More importantly, you need to be sure that UKBA still has your passports .... and not lost them in some pile. The more you delay requesting return your passports, higher are the chances that your passports will be lost!


IMHO ...


regards

[andsyl]

The review letter was in fact sent together with my initial application form Set(O). This means if I were to make a fresh application now I will not be able to attach neither the original copy of the Life in the UK test, nor the residence card (that is to be issued) nor the passport.

As concern the passport, I agree with you of the highly likelihood of getting it lost. I will call them tomorrow to see what they say. As I asked earlier, since the passport was sent to Liverpool, where should I send a letter? Liverpool or Croydon?

Will also, ask them tomorrow but their answer may not be ideal.

[andsyl]

I have contacted the UKBA on the 22/02/2011 to ask for my passport to be returned. The next day I called again and talked to a different person who advised me to write to Liverpool where I sent my passport to ask for it to be returned. I did write to them on the 23/02/2011.

Until this morning after two weeks (9 working days), I had not heard from them. So I called this afternoon and they asked me to wait 15 working days that will be around the 16 Mars 2011.

Since we have got the copy of our passports and the life in the UK test result, I was thinking about making a fresh application and pay the full fee. This new application will only include the copies of the required documents and a covering letter explaining that the passport is held by them. In this case, if they manged to find and return our passports, we would send them when they will require them.

Would that make the situation worse?

I will be very grateful for your useful advice here.

Regards

[geriatrix]

Why not wait until you hear from UKBA regarding whereabouts of your passport(s) ... and first ascertain the fate of your passport(s)?

Sending a new application without any information whether UKBA has your passports or have lost them, and without original LITUK test results, IMHO, you are just inviting another refusal (for one reason or the other, depending on what all the caseworker wants to tick as reason(s) of refusal).

With your appeal appeal allowed, you have legal permission to stay in the UK. No point in acting in haste.

IMHO ....

[andsyl]

Why not wait until you hear from UKBA regarding whereabouts of your passport(s) ... and first ascertain the fate of your passport(s)?

Sending a new application without any information whether UKBA has your passports or have lost them, and without original LITUK test results, IMHO, you are just inviting another refusal (for one reason or the other, depending on what all the caseworker wants to tick as reason(s) of refusal).

With your appeal appeal allowed, you have legal permission to stay in the UK. No point in acting in haste.

IMHO ....

Thanks. Hopefully I will hear from them this week. My worries is that if they have lost the passport they may decide to stay quiet and not replying at all to my request to return the passports.

What should I do if that were to happen?

Regards

[geriatrix]

What should I do if that were to happen?

I would personally see a qualified expert about this. It will be money well spent.

I share the same opinion.

[andsyl]

What should I do if that were to happen?

I would personally see a qualified expert about this. It will be money well spent.

I share the same opinion.

Deal all
Thank you for your help especially to Sushdmehta and joh118. A bit of good news here.

I have received this week-end my passport back from the UKBA. I am over the moon just like someone who has just been given ILR status. Unfortunately the passport were returned without my original SET(O) application, this means that at the moment I do not have the original of LITUKT.

I am just wandering what I should do next.

Of course I would like to submit a fresh application ASAP. But as explained above :

LITUKT:

I hold the copy of this document and the result has been already sent to UKBA. I was thinking that sending the copy of LITUKT and the certified copy of the ID I used to registered for the test and also explaining that the original had been sent to them, providing the special delivery reference number would be enough to prove that I have passed the test.

Biometric residence card:

Since our appeal was allowed in February I have unsuccessfully tried to get UKBA to issue my biometric residence card. Because I do not hold a card at the moment, I was thinking that by explaining the situation in a covering letter and enclosing a copy of the appeal determination to prove why I do not have an ID card would be enough for a new application.

The above idea is based on the fact in the application form guidance it is said that if a document cannot be sent at the time of applying, an explanation as to the reason should provided in a covering letter.

Please I need your helpful advice regarding this matter. I wish I could get this done and dusted ASAP so that I can set my mind in doing something else. The stress has become unbearable.

Thanks in advance.

[joh118]

About the Biometric Card, I wouln't worry about it, they have all their data on their system and they can verify it themselves.

About the LITUK test, I know it cost £30 or so to take it but i think it will take another couple of weeks to get the original back. Therefore, I would just re-take the test again.

If you really wish to do the whole application yourself, you will need to explain very clearly on a cover letter about your circumstances.

You will need to explain that all previous visa application has been in-time, that you have been outside the UK for less than 18 months over the 10 year period and most importantly, you will need to mention that the period from 30 September 2011 to 15 December 2011 was covered by section 3C. And also perhaps include reasons why you are tied to the UK (eg, settled wife, partner, uk born children, etc)

There is no requirement for the ILR application under long residence to be made in-time. so techinically, you are in no rush.

I suggest you read "2.3.6 Cases where an applicant completes 10 years continuous lawful residence or 14 years continuous residence while awaiting a decision on an application or appeal" in http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

[andsyl]

About the Biometric Card, I wouln't worry about it, they have all their data on their system and they can verify it themselves.

About the LITUK test, I know it cost £30 or so to take it but i think it will take another couple of weeks to get the original back. Therefore, I would just re-take the test again.

If you really wish to do the whole application yourself, you will need to explain very clearly on a cover letter about your circumstances.

You will need to explain that all previous visa application has been in-time, that you have been outside the UK for less than 18 months over the 10 year period and most importantly, you will need to mention that the period from 30 September 2011 to 15 December 2011 was covered by section 3C. And also perhaps include reasons why you are tied to the UK (eg, settled wife, partner, uk born children, etc)

There is no requirement for the ILR application under long residence to be made in-time. so techinically, you are in no rush.

I suggest you read "2.3.6 Cases where an applicant completes 10 years continuous lawful residence or 14 years continuous residence while awaiting a decision on an application or appeal" in http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Thank you Joh118
I wrote to UKBA 10 days ago to require my biometric and I have received a letter today that my biometric card will be sent in the next 7 working days. This means at the moment I just have to sort out the LITUKT issue.

I was really thinking that since the result has been sent to them and I hold a copy, I can explain in a covering letter why the original is not sent.

I appreciate your helpful advice. I am considering re-taking the exam. But I am worrying that taking the same exam twice for the same purpose may cause a problem. This would mean I will send my application with one result while in their records they would have received two results about the same applicant. Would that not be a serious enough problem to delay or reject my application?

I would be very grateful if other members can also share their view about this matter.

Many thanks

[joh118]

To be safe, you should re-take it just so you can provide an "original copy".

There is nothing in the rules to say you cant take the test again even if you have passed....